Plenum of the Constitutional Court of Ecuador, Distinguished Judges of the Constitutional Court of Ecuador,
Re: Revision of sentence
David Frederick Dene and Julio Prieto Méndez, in our capacity as United Nations experts on the Rights of Nature, respectfully allow us to point out a judgment that we consider worthy of selection and review by this Court (article 436 of the Constitution, arts. 25 and 199 of the LOGJCC, and arts. 25, 26 and 27 of the Regulations).
The judgment responds to a request for an autonomous precautionary measure that sought to prevent an irreversible ecological tragedy. However, this request was rejected, unfoundedly, by the Judge of the Unit on Violence Against Women and the Family Unit – 4, by judgment of March 6, 2019, at 14h41 (judgment No. 17574201900084).
As we will explain in this request, this case concerns a threat of serious and irreparable harm and presents a unique opportunity for the Constitutional Court to rule on issues of absolute national relevance, for which there are no judicial precedents.
These issues refer to the constitutional obligations applied between individuals (or what is known as the “horizontal effect”), the difference between imminence and immediacy for the granting of a precautionary measure, and the scope of the precautionary principle in environmental matters.
The jurisdictional guarantee, in this case the autonomous precautionary measure, was intended that the company Ecuacorriente S.A. (ECSA) corrects the designs and practices used for the construction of the dams that will contain more than 300 million tons of tailings at the Condor Mirador project.
The lawsuit does not attack environmental licenses because Ecuadorian law says nothing about the construction of mining tailings dams.
Taking advantage of this situation, ECSA is employing economical designs that are unable to withstand earthquakes and floods. In addition, they are being built using techniques that are so dangerous that they have been banned in several countries. Independent experts consider that the possibility of failure of these dams is so high that it can be considered unavoidable. Faced with this threat of an irreversible ecological tragedy, the precautionary measure sought to have ECSA build the mining tailings dams as safely as possible – rather than the cheapest, which is currently employed. In short, the precautionary measure does not seek to stop the mining project or any economic compensation, but demands that the dams be constructed in a way that eliminates the probability of failure, in order to guard against the imminent violation of nature’s rights.
Unfortunately, the judge issued a sentence denying the request for an injunction. Although the judge copied much of the lawsuit on its merits, she misunderstood the technical arguments and confused the imminence of the damage with immediacy. Thus, for example, there is a technical parameter concerning the capacity of dams to withstand flooding.
In the case in question, dams were required to be constructed with the maximum capacity to withstand floods, called “1000 year flood resistance”. The Judge made a mistake and understood this reference (which is a technical design parameter) to be an estimate of the time at which the flood would occur – making its entire rationale incorrect.
Consistent with this confusion, the judge concluded that the threat of harm that would occur in 1000 years was not imminent enough to warrant a precautionary measure. In other words, as a result of her technical error, the judge confused the constitutional requirement of the imminence of the damage with the immediacy in which it would occur, which led her to disregard the application of the precautionary principle and to leave the constitutional obligations between individuals unapplied.
Imminence and immediacy. – While it is true that dam failure is not something that will happen immediately, it is something that will happen imminently: the failure of dams built by ECSA will occur with absolute certainty and will cause irreversible ecological damage and the loss of hundreds of human lives.
Waiting for the threat of harm to be immediate in this case is tantamount to waiting for it to be unavoidable. When dams are built, there is no jurisdictional guarantee or human action capable of containing the disaster because the dams cannot be dismantled. In short, we cannot wait for the dam to be built to consider the threat imminent.
The time to act is now to prevent dams from being built in such a way that they constitute a threat of irreparable damage. This imminent damage can now be stopped; but if we wait until the threat is immediate, there is nothing we can do.
Precautionary principle. – The threat of harm should be sufficient to trigger the application of the precautionary principle. It is evident that if we wait for the immediacy or the consummation of the damage it would be too late to apply this principle. Moreover, the precautionary principle demands to be applied in case of doubt, and although the imminence of the damage in this case leaves no room for doubt, if any exists, one should act in such a way that constitutional rights are safeguarded. The judge did the opposite by ruling that the damage was not imminent because it was not immediate.
In any case, when in doubt, this was the ideal case to apply the precautionary principle, which was totally ignored by the Judge’s ruling. Now is the opportunity for the Constitutional Court to pronounce on the matter.
Although the scientific evidence, provided in conjunction with the application for an autonomous precautionary measure, was sufficient to establish the certainty of the failure of the dams built by ECSA, if the judge had had any doubts, she should have applied the precautionary principle. On the contrary, the judge did not understand and assumed that the damage would occur in 1000 years, so she decided that the threat was not imminent and there was no need to act. That is to say, the judge ignored her own doubt, and turned her ignorance into a sentence, denying the jurisdictional guarantee she should have granted. This inaction is a far cry from the application of the precautionary principle and the State’s duty to protect.
Constitutional obligations between individuals. – Jurisdictional guarantees are often directed against environmental licenses because it is often argued that the Public Administration gave them improperly.
However, in this case the environmental license has nothing to do with constitutional rights at risk of being violated. Regardless of the existence of environmental licenses, ECSA must respect the rights of nature. In other words, this case presents the opportunity for the Court to rule on constitutional obligations between private parties, since, according to the constitutional text, individuals are bound by the rights of nature directly and independently of any license or permit granted to them by the administration. It should be noted that the case in question refers exclusively to the rights of nature and constitutes an opportunity to delve deeper into the content of these rights, especially with regard to nutrient cycles and energy flows protected by constitutional law.
The precautionary measure does not contain any economic pretension or interest in obtaining particular benefits. It does not remove or prejudice acquired rights or question the powers of public administration. It is simply the protection of the constitutional rights of nature that demands obligations to make (care) of a private individual to avoid serious, imminent and irreversible damage to the rivers of the Ecuadorian Amazon.
Attached is a copy of the application for injunctive relief. Any response or notification will be received in the emails email@example.com and firstname.lastname@example.org
We sign in the quality invoked,
David Frederick Dene Julio Prieto Méndez
NIE X1734405-K REG: 17-2005-58
Published 1 May 2019